Opinion
No. (X02) CV 03-0179516-S
September 3, 2003
Ruling on Motion to Strike
In this case, seventy-one plaintiffs allege that they or their decedents were exposed to toxic chemicals and radiation while working at plants operated by Pratt Whitney Aircraft, a division of defendant United Technologies Corporation. Ten plaintiffs have brought battery and punitive damage claims, alleging severe injuries as a result of their exposure. The other sixty-one plaintiffs are the estate representatives of deceased former employees. They allege wrongful death, loss of consortium, and punitive damage claims as a result of their decedent's exposure. The defendants move to strike the complaint on the grounds of statute of limitations and misjoinder.
The other defendants are Harry J. Gray, Robert F. Daniell, and Louis R. Chenevert, each of whom is alleged to have been president of United Technologies at relevant times.
I.
On a motion to strike, this court must construe the allegations in the complaint in a light most favorable to the plaintiffs. See Faulkner v. United Tecbnologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). A motion to strike can raise the defense of statute of limitations in two situations: "[i]f all of the facts pertinent to the statute of limitations are pleaded in the complaint and the parties agree that they are true, or if a statute creating the cause of action on which the plaintiff relies fixes the time within which the cause of action must be asserted . . ." Girard v. Weiss, 43 Conn. App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996).
The first situation for raising the statute of limitations in a motion to strike does not exist here. The plaintiffs represent in their memorandum that, if the defendants raised the statute of limitations in a special defense, they will likely respond with allegations of fraudulent concealment or equitable estoppel, which are recognized defenses to the statute of limitations. See General Statutes § 52-595; Morris v. Costa, 174 Conn. 592, 599, 392 A.2d 468 (1978). The plaintiffs have not yet done so because they have no obligation to plead matters in avoidance of the statute of limitations in their complaint. See Ross Realty Corp. v. Surkis, 163 Conn. 388, 392, 311 A.2d 74 (1972). Further, due to the infancy of the case, very little, if any, of the discovery necessary to support such allegations has taken place. At this point, therefore, the plaintiffs' good faith representation suffices to establish that all of the facts pertinent to the statute of limitations are not pleaded in the complaint.
The second occasion for raising the statute of limitations in a motion to strike has greater applicability. Sixty-one counts of the complaint allege wrongful death under General Statutes § 52-555. The Supreme Court has held that "a specific time limitation is contained within [§ 52-555, and that it is] a statute that creates a right of action that did not exist at common law." Ecker v. West Harford, 205 Conn. 219, 232, 530 A.2d 1056 (1987). Id., 231-33. Thus, because a "statute creating the cause of action on which the plaintiff relies fixes the time within which the cause of action must be asserted . . ." Girard v. Weiss, supra, 43 Conn. App. 415, a motion to strike on limitations grounds might be appropriate.
The plaintiffs attempt to characterize these counts as arising under General Statutes § 52-577c, which pertains to actions to "recover damages for personal injury or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment . . ." The complaint, however, expressly alleges in each count "Wrongful Death (CGS § 52-555)" and does not cite § 52-577c. See also Practice Book § 10-3(a) ("When any claim made in a complaint . . . is grounded on a statute, the statute shall be specifically identified by number").
Because there is no such statute for battery claims, the effect of this analysis is to deny the motion to strike with regard to the battery and related punitive damages counts.
The plaintiffs respond by relying on the preemptive effect of 42 U.S.C. § 9658, which is a portion of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"). Under § 9658, if a claim is brought under state law for personal injury or property damages caused by hazardous chemicals and state law does not provide a statute of limitations that commences based on the plaintiff's actual or constructive discovery of the source of the injury, then the state statute of limitations cannot begin to run until the "federally required commencement date." This date occurs when "the plaintiff knew (or reasonably should have known) that the personal injury or property damages . . . were caused or contributed to by the hazardous substance or pollutant or contaminant concerned." 42 U.S.C. § 9658 (b)(4)(A) See ABB Industrial Systems, Inc. v. Prime Technology, Inc., 120 F.3d 351, 360 n. 5 (2d Cir. 1997). The Second Circuit has held that the language in § 9658(a)(1) making the statute applicable to "any action brought under State law for personal injury, or property damages . . ." includes state wrongful death actions. See Freier v. Westinghouse Electric Corp., 303 F.3d 176, 198-200 (2d Cir. 2002), cert. denied, 123 S.Ct. 1899 (2003). The applicability of § 9658 to this case would defeat a motion to strike, since there is no allegation in the complaint concerning when each plaintiff's decedent knew or should have known that the death was caused by the toxins in question.
Section 9658, entitled "Actions under State law for damages from exposure to hazardous substances," provides in pertinent part as follows:
(a) State statutes of limitations for hazardous substance cases
(1) Exception to State statutes In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute.
(2) State law generally applicable Except as provided in paragraph (1), the statute of limitations established under State law shall apply in all actions brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility.
. . .
(b) Definitions.
. . .
(4) Federally required commencement date (A) In general
[With exceptions not relevant here,] the term "federally required commencement date" means the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in subsection (a)(1) of this section were caused or contributed to by the hazardous substance or pollutant or contaminant concerned.
Section 9658(a), however, only applies to causes of action arising from exposure to any hazardous substances, pollutant or contaminant "released into the environment from a facility . . ." 42 U.S.C. § 9658 (a)(1); note 4 supra. Insofar as relevant, the term "release" means "any spilling, leaking, pumping, pouring, emitting . . . but excludes (A) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons . . ." 42 U.S.C. § 9601 (22). Plaintiffs allege that they have filed workers' compensation claims against the defendants based on their workplace exposure. (See, e.g., Complaint, count one, ¶ 26.) Thus, the plaintiffs cannot rely on § 9658 insofar as they claim wrongful death from the release of contaminants within the workplace, which is the heart of their wrongful death claim.
The plaintiffs also rely on their allegations that the "exposure occurred by inhalation, ingestion and skin absorption of toxic agents in [their] work environment and in [their] home and car when toxic agents were unknowingly taken outside the work environment on [their] clothing and person." (Complaint, count one, ¶ 11.) However, a release of toxins from clothing in the environment of a car or a home does not constitute a "[release] into the environment from a facility under CERCLA. See Ruffing v. Union Carbide Corp., 193 Misc.2d 350, 746 N.Y.S.2d 798 (2002). "Environment" under CERCLA is defined to include water, land surface, or "ambient air within the United States . . ." 42 U.S.C. § 9601 (8). Although CERCLA is a remedial statute and should be interpreted liberally, see Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st Cir. 1986), and "[i]t is lexically possible to treat the `environment' as everything pertaining to the planet Earth," such a definition would "[erase] `released into the environment' as a limitation . . . by ensuring that it is always satisfied." Covalt v. Carey Canada, Inc., 860 F.2d 1434, 1436-37 (7th Cir. 1988). Accordingly, courts have interpreted the term "environment" under CERCLA to exclude a release that has occurred solely within an enclosed building rather than into the "ambient air." See Ruffing v. Union Carbide Corp., supra, 193 Misc.2d 362, 366-67. Thus, release of toxins from clothing or the person into the atmosphere of a home or car, or directly into the body of a person, would not constitute a release into the "environment" under CERCLA. See also Covalt v. Carey Canada, Inc., supra, 860 F.2d 1436 ("[a] place where work is being carried out is not the `environment' for purposes of the Superfund Act").
Section 9601(8) provides:
The term "environment" means (A) the navigable waters, the waters of the contiguous zone, and the ocean waters of which the natural resources are under the exclusive management authority of the United States under the Magnuson-Stevens Fishery Conservation and Management Act ( 16 U.S.C. § 1801 et seq.), and (B) any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.
Similarly, CERCLA defines "facility" to mean "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, otherwise come to be located; but does not include any consumer product in consumer use or any vessel." 42 U.S.C. § 9601 (9)(B). Under this definition, a person's clothing, a common consumer product, can hardly be considered a "facility." Thus, exposure as a result of inhalation, ingestion, and skin absorption from clothing would not constitute release into the environment "from a facility." See also Rivas v. Safety-Kleen Corp., 98 Cal.App.4th 218, 119 Cal.Rptr.2d 503, 519 (2002) (rejecting claims that some "liquid or vapors clung to [workers'] skin or clothing and were inhaled or released into the ambient air outside their places of employment" on the ground that "we do not believe that such de minimus exposure transforms these occupational exposure actions into CERCLA claims").
An examination of the overall purpose of CERCLA supports the view that the phrase "[release] into the environment from a facility . . ." does not encompass contamination when, as here, the initial exposure occurred at the workplace. The goal of CERCLA is "[t]o provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites." Freier v. Westinghouse Electric Corp., supra, 303 F.3d 201 (quoting Pub.L. No. 96-510, 94 Stat. 2767, 2767 (1980)). CERCLA "does not regulate emissions from existing sources (the subject of the Clean Air and Clean Water Acts) or the levels of toxic substances permitted at work (the subject of the Occupational and Safety and Health Act)." Covalt v. Carey Canada, Inc., supra, 860 F.2d 1437. Thus, it is "obvious . . . that section 9658 was never meant to extend to all state court lawsuits for personal injury and property damage arising from exposure to toxic substances" and that "[b]y retaining the requirements that the exposure result from `release' into the `environment' from a `facility' as those terms are used for purposes of a CERCLA cost recovery action, Congress expressed its intent to limit the statute's scope." Rivas v. Safety-Kleen Corp., supra, 119 Cal.Rptr.2d 517.
The plaintiffs counter by relying on the following allegation in the complaint:
Defendants polluted the air, soil, surface water and ground water beneath and surrounding the North Haven plant, causing the U.S. Environmental Protection Agency to list the facility as a hazardous waste dump. These hazardous substances, pollutants and contaminants reentered the workplace air and water thereby exposing the plaintiff's decedent to their harmful effects.
(Complaint, count one, ¶ 14.) It is true, of course, that CERCLA was intended to regulate emissions from hazardous waste disposal sites. See Freier v. Westinghouse Electric Corp., supra, 303 F.3d 201. However, the plaintiffs' decedents were not third parties injured as a result of living or engaging in recreation in the vicinity of a hazardous waste disposal site. Cf. id., 183. Rather, they were employees of the very company that owned the site. The plaintiffs' position is apparently that employees of a hazardous waste site fall within the scope of CERCLA. That is not the law. Rather, regardless of the claim that toxins from a hazardous waste site may have "reentered the workplace air and water . . ." the definition of "release" in CERCLA, which triggers the federally required commencement data, excludes "any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons . . ." 42 U.S.C. § 9601 (22). Thus, the plaintiffs cannot rely on CERCLA.
The representatives of the employees who worked at the East Hartford, Middletown, Southington, and Podunk plants do not allege that the Environmental Protection Agency (EPA) listed their facility as a hazardous waste dump. (See, e.g., Complaint, counts 12, 93, 98, 157, ¶¶ 9, 14.) (But see Complaint, count 7, ¶¶ 9, 14 (alleging that the EPA listed the North Haven plant as a hazardous waste dump and that the plaintiff's decedent worked in Southington).)
In view of this conclusion, it is not necessary to reach the other grounds advanced by the defendants for the inapplicability of CERCLA.
Instead, the applicable statute of limitations for the wrongful death claims is General Statutes § 52-555. Under this statute, "no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of." General Statutes § 52-555 (a). The applicable statute of limitations for the loss of consortium claims is General Statutes § 52-555c (a), which incorporates the statute of limitations for wrongful death claims. Applying these statutes, the court grants the motion to strike the following counts because the decedents died more than two years before the filing of this lawsuit in March 2003:1-9, 12-47, 51-68, 70-100, 104-15, 118-19, 122-60, 165-70, 173-75, 178-82, and 191-92.
This list includes numerous counts seeking punitive damages based on the alleged intentional or reckless actions of the defendants in causing the wrongful death of the decedent. The plaintiffs do not dispute that the statute of limitations for these counts is the same as the statute of limitations that applies to the wrongful death counts.
In three additional cases, the decedents died within the two-year period prior to filing the complaint. In these cases, the plaintiffs respectively allege that their decedents ended their employment with the defendants in 1970 (Complaint, count 101, ¶ 9), 1960 (Complaint, count 183, ¶ 9), and 1973 (Complaint, count 193, ¶ 9). The plaintiffs allege that the defendants intentionally exposed the decedents to toxic agents "during the entire course of [their] employment at UTC/Pratt Whitney." (Complaint, counts 101, 183, 193, ¶ 10.) Since the "act or omission complained of" is thus the defendants' exposure of the decedents to toxins during their employment, and this employment ended no sooner than thirty years ago, the plaintiffs plainly brought these counts "more than five years from the date of the act or omission complained of." General Statutes § 52-555 (a). These counts are thus beyond the statute of limitations. As discussed, the related loss of consortium and punitive damages counts have the same limitations period. Accordingly, the court grants the motion to strike the following counts: 101-03, 183-84, and 193-95.
III
The defendants alternatively move to strike all counts on the ground that the plaintiffs are improperly joined. See Practice Book § 10-39(4). The defendants maintain that the plaintiffs' claims do not arise from the same transaction and involve different issues of fact and law. See Practice Book § 9-4. The practical response is that this case is assigned to the complex litigation docket and the court may therefore "enter any appropriate order which facilitates the management of the complex litigation cases." Practice Book § 23-14. At this point, it is more efficient to handle this litigation as one joint case than as seventy-one separate ones. The joint briefing of this very motion, which all parties handled effectively, is a case in point. If, at some later point, it becomes necessary to separate some or all cases for trial or other purposes, the court has ample authority to do so. See Practice Book §§ 9-4, 10-21, 15-2, 23-14. The motion to strike on the ground of misjoinder is accordingly denied.
IV
For the foregoing reasons, the court grants the motion to strike counts 1-9, 12-47, 51-68, 70-103, 104-15, 118-19, 122-60, 165-70, 173-75, 178-84, and 191-95, and denies the remainder of the motion.
It is so ordered.
Carl J. Schuman Judge, Superior Court